Look back on the first two days of the Bulger trial

The first two days of the James "Whitey" Bulger trial have been light on court time and heavy on jury questionnaires. U.S. District Court Judge Denise J. Casper has met with more than 800 prospective jurors, explaining the trial process to them and having them answer several questions about their backgrounds.

The judge announced at a hearing this morning that she intends to begin opening statements a week from today. Her initial plan was to wrap up jury selection in four days but it became clear very quickly that was not going to happen. Finding 18 people (12 jurors plus six alternates) who are up to the task of deciding Bulger's guilt or innocence isn't going to happen quickly.

Casper took under advisement a motion filed by The Boston Globe, which is seeking an order that two of its reporters named on Bulger's witness list not be banned from covering the case. In a filing submitted this morning, defense attorneys J.W. Carney Jr. and Hank B. Brennan write that they're likely to call both reporters to the stand at trial because they've obtained statements from crucial government witnesses such as Kevin Weeks, Stephen Rakes, and Thomas Foley.

Before The Globe issue was heard, Casper put on the record that she was an associate at Bingham McCutchen at one time, which happens to be the law firm that represents the newspaper. Casper said she worked in the litigation department with The Globe's lawyer, Jonathan Albano, but that she didn't believe her prior employment would have any impact on her ability to be fair and impartial.

Casper offered to refer any Globe-related issues to U.S. Magistrate Judge Marianne Bowler. But the defense said that wasn't necessary. After briefly chatting with Bulger, Carney said he had no objection to Casper handling the matter. Carney pointed out that he knows a thing or two about recusal, having successfully removed U.S. District Court Judge Richard G. Stearns from the trial.

When The Globe matter was heard, Albano told the judge Bulger hadn't cited any cases in support of his position. "The public has a right to ensure that reporters who know about the case can attend and write about it," Albano said, adding that the defense shouldn't be able to hand-pick those reporters it believes should cover the case. "It's like saying [Rajon] Rondo went down but [Paul] Pierce and [Kevin] Garnett are on the team, so it's OK."

The judge also deferred a ruling on a defense motion to introduce statements made over the years by Department of Justice lawyers in Bulger-related civil cases. Carney said the DOJ civil attorneys took positions and made factual assertions that were "patently inconsistent" with those made by the criminal prosecutors appearing before Casper. A number of those statements pertained to key government witness Steve Flemmi, whom DOJ lawyers have previously called "sick" and a liar.

Carney, who once taught a law school course on evidence, said the statements are exceptions to hearsay as admissions of a party opponent. "The rule of admissions is quite simple," he said. "If the party makes the statement, he owns it. Anything that comes out of that person's mouth is admissible." Carney correctly states the rule. If the judge agrees, the only issue for her to decide is if the statements in question are relevant to the case. Carney said they're relevant because they go to witness credibility determinations that are at the heart of the trial.

Prosecutor Fred Wyhsak countered that there's a distinction between commenting on the credibility of a government lawyer and statements of fact. "You can't take a statement out of context and apply it … with a broad brush. Putting [before jurors] the credibility of government counsel at this table is inappropriate."

It's a really interesting question that could go either way. My instincts tell me that the judge will side with the prosecution, but that's only because that's how Casper has ruled on nearly all the pre-trial motions put before her.

The prosecution keeps asking why Bulger has placed two of its investigators on the defense witness list. They're accusing the defense of trying to keep the investigators out of the courtroom. Carney and Brennan have been tight-lipped about what they intend to elicit from them on the stand. When pressed today by Casper, the defense would only say that it was for some reason other than impeachment. Stay tuned.

Kudos to the officials at the Moakley Courthouse. They've been preparing for this trial for a long time and are running things extremely well.

Casper has already given some insight into her trial practices. A notoriously early starter, she's on the bench at 8:45 every morning in order to deal with matters before the jury enters. With regard to lodging objections, she told the lawyers she wants them only to say "objection." While she said it's OK, on occasion, to give a brief explanation for an objection in front of the jury, any substantive explanation should occur at sidebar.

On the issue of witness examination, she said she'll allow direct, cross, re-direct and re-cross examination of a witness. It's hard to fault the logic there. I can't think of too many good reasons for a re-re-direct of a witness.

The prosecution estimates that it will take 12 weeks to present its case. Bulger's lawyers say they'll need at least four. The safer bet would be to add a few weeks to both sides' estimates — meaning we could be waiting for a verdict closer to Thanksgiving than Labor Day.

Both sides will get an hour for their openings. While a defendant is not required to deliver an opening statement, Carney told the judge he intends to do so.

As legendary baseball announcer Vin Scully has been known to say: "Pull up a chair. This one's just getting started."

Follow David Frank on Twitter @davidfrankmlw

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